Current through all regulations passed and filed through December 16, 2024
(A) Purpose. Kent
state university prohibits unlawful discrimination and harassment and strives
to provide a safe and non-discriminatory environment for all students,
employees, applicants, and visitors. This policy sets forth the expectations
and responsibilities for maintaining an environment free of unlawful
discrimination on the basis of sex in university education programs or
activities, in accordance with Title IX of the Education Amendments of 1972 and
Title 34 part 106 of the Code of Federal Regulations. Sexual harassment,
including sexual assault, dating violence, domestic violence, and stalking is
strictly prohibited by this policy. Additionally, retaliation against those
whose report sexual harassment or participate in the process is prohibited.
Inquiries about the application of title IX to the university may be referred
to the university's title IX coordinator, and to the U.S. department of
education, office for civil rights.
(B) Definitions
(1)
Actual knowledge,
Notice of sexual harassment or allegations of sexual harassment to an
individual's Title IX coordinator or any university official who has authority
to institute corrective measures on behalf of the recipient.
(2)
Complainant. An
individual who is alleged to be the victim of conduct that could constitute
sexual harassment.
(3) Consent. An action
defined as the voluntary, unambiguous and uncoerced agreement to participate in
an act, the nature and full extent of which is understood by all parties.
Silence or lack of resistance cannot be the sole factor in determining consent.
Consent may be given verbally or nonverbally. All parties are responsible for
confirming that their counterpart's consent is maintained throughout the act
and is present before engaging in a new act. A person may be incapable of
giving consent due to physical incapacitation, physical or mental disability,
threat, coercion, the influence of alcohol or drugs, or age.
(4)
Coercion. When an individual unreasonably pressures another to engage in sexual
activity, despite responses that the conduct is unwelcome or unwanted. Coercion
includes elements of pressure, duress, cajoling, and compulsion. The pressure
to participate may also be considered unreasonable when the pressuring
individual is in a position of influence or authority over the other
individual.
(5) Incapacitation. A
state where a person lacks the capacity to reasonably appreciate the nature or
extent of the situation because of their physical or mental status,
developmental disability, or alcohol or drug use.
(6) Formal complaint. A
document filed by a complainant or signed by the Title IX coordinator alleging
sexual harassment against a respondent and requesting that the university
investigate the allegation of sexual harassment. The document may be a physical
or electronic submission (such as reporting online, using the reporting form available
at
https://www.kent.edu/studentaffairs/genderequitytitleix_2_)
that contains the complainant's physical or digital signature, or otherwise
indicates that the complainant is the person filing the formal
complaint.
(7) Respondent. An
individual who has been reported to be the perpetrator of conduct that could
constitute sexual harassment.
(8) Sexual harassment.
Conduct on the basis of sex that satisfies one or more of the following:
(a) An employee of the university
conditioning the provision of an aid, benefit, or service of the university on
an individual's participation in unwelcome sexual conduct.
(b) Unwelcome conduct determined by a
reasonable person to be so severe, pervasive, and objectively offensive that it
effectively denies a person equal access to the university's education program
or activity.
(c) Sexual assault,
which includes the following:
(i) Rape (except
statutory rape). The carnal knowledge of a person, without the consent of the
victim, including instances where the victim is incapable of giving consent
because of their age or because of their temporary or permanent mental or
physical incapacity.
(ii) Sodomy.
Oral or anal sexual intercourse with another person, without the consent of the
victim, including instances where the victim is incapable of giving consent
because of their age or because of their temporary or permanent mental or
physical incapacity.
(iii) Sexual
assault with an object. To use an object or instrument to unlawfully penetrate,
however slightly, the genital or anal opening of the body of another person,
without the consent of the victim, including instances where the victim is
incapable of giving consent because of their age or because of their temporary
or permanent mental or physical incapacity.
(iv) Fondling. The touching of the private
body parts of another person for the purpose of sexual gratification without
the consent of the victim, including instances where the victim is incapable of
giving consent because of their age or because of their temporary or permanent
mental or physical incapacity.
(v)
Incest. Nonforcible sexual intercourse between persons who are related to each
other within the degrees wherein marriage is prohibited by law.
(vi) Statutory rape. Nonforcible sexual
intercourse with a person who is under the statutory age of consent.
(d) Dating violence. Violence
committed by a person who is or has been in a social relationship of a romantic
or intimate nature with the victim. The existence of such a relationship shall
be determined based on a consideration of the length of the relationship, the
type of relationship, and the frequency of interaction between the persons
involved in the relationship.
(e)
Domestic violence. Felony or misdemeanor crimes of violence committed by a
current or former spouse or intimate partner of the victim, by a person with
whom the victim shares a child in common, by a person who is cohabitating with
or has cohabitated with the victim as a spouse or intimate partner, by a person
similarly situated to a spouse of the victim under the domestic or family
violence laws of the jurisdiction, or by any other person against an adult or
youth victim who is protected from that person's acts under the domestic or
family violence laws of the jurisdiction.
(f) Stalking. Engaging in a course of conduct
directed at a specific person that would cause a reasonable person to fear for
their safety or the safety of others, or suffer substantial emotional
distress.
(9) Supportive
measures. Non-disciplinary, non-punitive individualized services offered as
appropriate, as reasonably available, and without fee or charge to the
complainant or the respondent before or after the filing of a formal complaint
or where no formal complaint has been filed. Such measures are designed to
restore or preserve equal access to the university's education program or
activity without unreasonably burdening the other party, including measures
designed to protect the safety of all parties or the university's educational
environment, or deter sexual harassment. Supportive measures may include
counseling, extensions of deadlines or other course-related adjustments,
modifications of work or class schedules, campus escort services, mutual
restrictions on contact between the parties, changes in work or housing
locations, leaves of absence, increased security and monitoring of certain
areas of the campus, and other similar measures.
(10) Title IX
coordinator. The university administrator with authority and responsibility for
overseeing the university's implementation of Title IX law and regulations and
this policy. The Title IX coordinator's contact information may be located at
https://www.kent.edu/studentaffairs/genderequity-titleix.
(C) Scope. This policy applies to complaints
of sexual harassment as defined above, alleged to have occurred in an education
program or activity of the university, against a person in the United
States.
(D) Grievance process. The
following grievance process to resolve complaints under this policy is expected
to occur within ninety business days from the date the complaint is filed.
The Title IX coordinator or designee may suspend or extend this time period by
providing written notice to parties citing the reason for the action. Parties
may request a temporary delay of the grievance process or the limited extension
of time frames for good cause by written request to the Title IX coordinator.
Good cause may include considerations such as the absence of a party, a party's
advisor, or a witness; concurrent law enforcement activity; or the need for
language assistance or accommodation of disabilities.
(1) Confidentiality. The university shall
treat as confidential the identity of any individual who has made a report or
complaint of sex discrimination, including any individual who has made a report
or filed a formal complaint of sexual harassment, any complainant, any
individual who has been reported to be the perpetrator of sex discrimination,
any respondent, and any witness, except as may be permitted by law, or to carry
out any investigation, hearing, or proceeding in this policy.
(2) Retaliation prohibited. No person may
intimidate, threaten, coerce, or discriminate against any individual because
the individual has made a report or complaint, testified, assisted, or
participated or refused to participate in any manner in an investigation,
proceeding, or hearing under this policy. Complaints alleging retaliation may
be filed according to the grievance procedures in this policy.
(3) Supportive measures. The Title IX
coordinator is responsible for coordinating the effective implementation of
supportive measures for both parties as applicable, before or after the filing
of a formal complaint or where no formal complaint has been filed. The
university shall maintain as confidential any supportive measures provided to
the complainant or respondent, to the extent that maintaining such
confidentiality would not impair the ability of the university to provide the
supportive measures, and as allowed by law.
(4) Formal complaint. A formal complaint may
be filed with the Title IX coordinator in person, by mail, or by electronic
mail by using the contact information for the Title IX coordinator
. At the
time of filing a formal complaint, a complainant must be participating in or
attempting to participate in an education program or activity of the
university. Where the Title IX coordinator signs a formal complaint, the Title
IX coordinator is not a complainant or otherwise a party.
Consolidation of formal complaints. The university may consolidate formal
complaints as to allegations of sexual harassment against more than one
respondent, or by more than one complainant against one or more respondents, or
by one party against the other party, where the allegations of sexual
harassment arise out of the same facts or circumstances. Where a grievance
process involves more than one complainant or more than one respondent,
references in this section to the singular "party," "complainant," or
"respondent" include the plural, as applicable.
(5) Notice. Upon receipt of a formal
complaint, the university shall provide the following written notice to the
parties who are known: notice of this grievance process, including any informal
resolution process; and notice of the allegations of sexual harassment
potentially constituting sexual harassment as defined
in this
paragraph, including sufficient details known at the time and with
sufficient time to prepare a response before any initial interview.
If, in the course of an investigation, the university decides
to investigate allegations about the complainant or respondent that are not
included in the notice provided, the university shall provide notice of the
additional allegations to the parties whose identities are known.
(6) Dismissal of formal complaint.
(a) The Title IX coordinator shall dismiss
formal complaints that do not meet the following criteria. Formal complaints
will be dismissed promptly in writing to the parties, and may be considered
under another university policy, if applicable.
(i) The alleged incident must have occurred
in a Kent state university education program or activity. "Education program or
activity" includes locations, events, or circumstances over which the
university exercises substantial control over both the respondent and the
context in which the sexual harassment occurred, and also includes any building
owned or controlled by a student organization that is officially recognized by
the university.
(ii) The alleged
incident must have occurred against a person in the United States.
(iii) At the time of filing a formal
complaint, a complainant must be participating in or attempting to participate
in the education program or activity of the university with which the formal
complaint is filed.
(iv) The
conduct alleged in the formal complaint must constitute sexual harassment as
defined in this policy.
(b) The Title IX coordinator may dismiss a
formal complaint, promptly in writing to the parties, if at any time during the
investigation or hearing: a complainant notifies the Title IX coordinator in
writing that the complainant would like to withdraw the formal complaint or any
allegations therein; the respondent is no longer enrolled or employed by the
university; or specific circumstances prevent the university from gathering
evidence sufficient to reach a determination.
(7) Interim actions. The university may
remove a student respondent from an education program or activity on an
emergency basis after an individualized safety and risk analysis determines
that an immediate threat to the physical health or safety of any student or
other individual arising from the allegations of sexual harassment justifies
removal. The student respondent will be provided notice and an opportunity to
challenge the decision immediately following the removal. The university may
place an employee respondent on administrative leave during the pendency of
this grievance process.
(8)
Informal resolution. At any time prior to reaching a determination regarding
responsibility, the university may facilitate an informal resolution process,
such as mediation, that does not involve a full investigation and adjudication.
(a) Both parties' voluntary, written consent
to the informal resolution process is necessary. At any time prior to agreeing
to a resolution, any party has the right to withdraw from the informal
resolution process and resume the grievance process with respect to the formal
complaint.
(b) Informal resolution
is not an option for resolving allegations that an employee sexually harassed a
student.
(9)
Investigation. The Title IX coordinator or designee is responsible for
investigating eligible formal complaints.
(a)
The burden of proof and the burden of gathering evidence sufficient to reach a
determination regarding responsibility rest on the investigator and not on the
parties.
(b) The respondent is not
considered responsible for the alleged conduct until a determination regarding
responsibility is made at the conclusion of the grievance process.
(c) The university shall not access,
consider, disclose, or otherwise use a party's records that are made or
maintained by a physician, psychiatrist, psychologist, or other recognized
professional or paraprofessional acting in the professional's or
paraprofessional's capacity, or assisting in that capacity, and which are made
and maintained in connection with the provision of treatment to the party,
unless the university obtains that party's voluntary, written consent to do so
for a grievance process under this section, or as permitted by law.
(d) The parties shall have an equal
opportunity to present witnesses, including fact and expert witnesses, and
other inculpatory and exculpatory evidence.
(e) All parties are free to discuss the
allegations under investigation or to gather and present relevant
evidence.
(f) All parties shall
have the same opportunities to have others present during any grievance
proceeding, including the opportunity to be accompanied to any related meeting
or proceeding by the advisor of their choice. However, the advisor may not
directly participate in the proceedings, with the exception of the
cross-examination portion of any hearing.
(g) Any party whose participation is invited
or expected shall receive written notice of the date, time, location,
participants, and purpose of all hearings, investigative interviews, or other
meetings, with sufficient time for the party to prepare to
participate.
(h) Both parties shall
receive an equal opportunity to inspect and review any evidence obtained as
part of the investigation that is directly related to the allegations raised in
a formal complaint so that each party can meaningfully respond to the evidence
prior to conclusion of the investigation.
(i) Prior to completion of the investigative
report, the investigator shall send to each party and the party's advisor, if
any, the evidence subject to inspection and review in an electronic format or a
hard copy, and the parties shall have ten calendar days to submit a written
response, which the investigator will consider prior to completion of the
investigative report.
(j) The
investigator shall make all evidence subject to the parties' inspection and
review available at any hearing to give each party equal opportunity to refer
to such evidence during the hearing, including for purposes of
cross-examination.
(k) The
investigator shall create an investigative report that fairly summarizes
relevant evidence and, at least ten calendar days prior to any hearing, send to
each party and the party's advisor, if any, the investigative report in an
electronic format or a hard copy, for their review and written
response.
(10) Hearings.
(a) Formal complaints that are not resolved
informally or dismissed will result in a live hearing. If the respondent is a
student, the hearing will be convened by the office of student conduct in
accordance with that office's procedures. If the respondent is an employee, a
hearing will be convened by the vice president of human resources and conducted
in accordance with that office's procedures. Live hearings may be conducted
with all parties physically present in the same geographic location, or
participants may appear at the live hearing virtually, with technology enabling
participants simultaneously to see and hear each other.
(b) At the live hearing, the
decision-maker(s) shall permit each party's advisor to ask the other party and
any witnesses all relevant questions and follow-up questions, including those
challenging credibility. Such cross-examination at the live hearing shall be
conducted directly, orally, and in real time by the party's advisor of choice
and never by a party personally.
(c) At the request of either party, the
hearing may occur with the parties located in separate rooms with technology
enabling the decision-maker(s) and parties to simultaneously see and hear the
party or the witness answering questions.
(d) Only relevant cross-examination and other
questions may be asked of a party or witness. Before a complainant, respondent,
or witness answers a cross-examination or other question, the decision-maker(s)
shall first determine whether the question is relevant and explain any decision
to exclude a question as not relevant. Questions and evidence about the
complainant's sexual predisposition or prior sexual behavior are not relevant,
unless such questions and evidence are offered to prove that someone other than
the respondent committed the conduct alleged by the complainant, or if the
questions and evidence concern specific incidents of the complainant's prior
sexual behavior with respect to the respondent and are offered to prove
consent.
(e) If a party does not
have an advisor present at the live hearing, the university shall provide
without fee or charge to that party, an advisor of the university's choice to
conduct cross-examination on behalf of that party.
(f)
A decision-maker shall consider all relevant evidence in
reaching a determination of responsibility including evidence obtained during
the investigation that was not subject to cross-examination at the live
hearing. This permits consideration of statements, emails, text echanges,
police reports, sexual assault nurse examiner documents, medical reports, and
other documents even if those documents contain statements by a party or
witness who is not cross-examined at the live hearing.
(g) Credibility determinations shall not be
based on a person's status as a complainant, respondent, or witness.
(h) The university shall create an audio
or audiovisual recording of
any live hearing. Such recording will be available to the parties for
inspection and review upon written request to the office of student
conduct.
(11)
Findings and sanctions. The hearing decision-maker(s) shall issue a
written determination regarding responsibility. To reach this determination,
the preponderance of the evidence standard (whether it is more likely than not
that the alleged conduct occurred) will be used. The written determination
shall include:
(a) Identification of the
allegations potentially constituting sexual harassment;
(b) A description of the procedural steps
taken from the receipt of the formal complaint through the determination,
including any notifications to the parties, interviews with parties and
witnesses, site visits, methods used to gather other evidence, and hearings
held;
(c) Findings of fact
supporting the determination;
(d)
Conclusions regarding the application of the university's policies to the
facts;
(e) A statement of, and
rationale for, the result as to each allegation, including a determination
regarding responsibility;
(f) For
respondents who are students and unrepresented employees, any disciplinary
sanctions the university imposes on the respondent;
(g) Information regarding whether remedies
designed to restore or preserve equal access to the university's education
program or activity will be provided to the complainant; and
(h) The university's procedures and
permissible bases for the complainant and respondent to appeal.
(12) The written determination
will be provided to the parties simultaneously. The determination regarding
responsibility becomes final either on the date that the university provides
the parties with the written determination of the result of the appeal, if an
appeal is filed, or if an appeal is not filed, the date on which an appeal
would no longer be considered timely. The Title IX coordinator is responsible
for effective implementation of any remedies.
(13) For respondent employees in a recognized
bargaining unit, the hearing process will determine whether a policy violation
occurred, and will determine sanctions with consideration to any applicable
terms of the collective bargaining agreement. The determination of policy
violation can be appealed following the process in this policy. Appeals of any
sanctions should follow the applicable process in the collective bargaining
agreement. Any determinations from those processes will be communicated to the
complainant and respondent simultaneously and in writing.
(14) Sanctions for student respondents are
detailed in the code of student conduct and range from required educational
courses to dismissal. Sanctions for employees range from required educational
courses to termination.
(E) Appeal. An appeal from a determination
regarding responsibility, and from the university's dismissal of a formal
complaint or any allegations therein, is available to both parties under the
same circumstances and procedures.
(1) An
appeal may only be made on the following bases:
(a) Procedural irregularity that affected the
outcome of the matter;
(b) New
evidence that was not reasonably available at the time the determination
regarding responsibility or dismissal was made, that could affect the outcome
of the matter; and
(c) The Title IX
coordinator, investigator(s), or decision-maker(s) had a conflict of interest
or bias for or against complainants or respondents generally or the individual
complainant or respondent that affected the outcome of the matter.
(2) Appeal procedure:
(a) Either party may appeal a hearing
determination within seven calendar days.
(b) Determinations regarding student
respondents shall follow the appeal process in the code of student conduct.
Determinations regarding employee respondents shall appeal in writing to the
vice president of human resources and follow that office's procedure.
(c) The other party(ies) will be notified in
writing when an appeal is filed.
(d) The decision-maker(s) for the appeal
shall not be the same person as the decision-maker(s) that reached the
determination regarding responsibility or dismissal, the investigator(s), or
the Title IX coordinator;
(e) Both
parties will be given a reasonable, equal opportunity to submit a written
statement in support of, or challenging, the outcome.
(f) A written decision will be issued
simultaneously to both parties within thirty calendar days describing the
result of the appeal and the rationale for the result.
(F) Conflict of interest. The
Title IX coordinator, any investigator, decision-maker, or any person
facilitating a process under this policy shall not have a conflict of interest
or bias for or against complainants or respondents generally or an individual
complainant or respondent specifically.